THE CONSTITUTION SAYS

By Celia Cohen
Grapevine Political Writer

There is apparently never going to be an
uncomplicated path to Senate confirmation for Leo Strine
Jr., the judge whose imperial brilliance makes him the
Delaware Court of Chancery's very own human peacock.

The first time around, Strine's appointment for vice
chancellor touched off a bazaar to come up with enough
votes to confirm someone who is known for not suffering
fools. By definition, this would include some state
senators.

This time around, his reappointment is a
constitutional headache.

It requires the Senate to consider Strine's new
appointment by the governor in an unwanted special
session. A very unwanted special session.

The Senate will return to Dover next Tuesday, Dec.
14, four weeks before the General Assembly is scheduled
to convene Jan. 11 for its new two-year term.

The state legislature is not like the Congress, which
can have a lame-duck session with the old members still
in place between Election Day and the next term.
Instead, the turnover in Legislative Hall is immediate
after the election. If there is business to be done
before January, the new members have to do it.

This means a potentially wrenching vote to install a
new president pro tem is coming up somewhat earlier than
expected. Legislative Hall is in high cockalorum.

The new Senate has 14 Democrats and seven
Republicans, all of whom cast votes for the president
pro tem. It should be Tony DeLuca, continuing as pro
tem, but maybe not. His brook-no-dissent style has its
detractors.

DeLuca had to turn back a surprising challenge within
the Democratic caucus from Michael Katz, who could still
make a run at pro tem if he and his Democratic allies
can hold firm and make common cause with the
Republicans.

"I guess there's going to be a challenge perhaps.
We're in an interesting position. We haven't met. We
will meet sometime before the 14th and see where the
caucus wants to go," said Gary Simpson, the Republican
minority leader.

It is a difficult vote -- for any senator thinking
about taking on DeLuca and especially for a Democratic
senator shattering the caucus unity. There is also the
old saying to consider. If you go after the king, you
had better kill him.

"If we have 11 people with the guts to say no, we
shall see," said Karen Peterson, a Democratic senator
backing Katz.

There is no question there has to be a special
session. Strine's days on the bench are waning.

His 12-year term expired Nov. 9. A judge is allowed
by the state constitution to stay on for another 60 days
but emphatically no longer. "In no event," the
constitution says.

Strine would be out three days before the General
Assembly normally would be back in. The constitution has
a remedy. It instructs the governor to summon the Senate
to a special session, so that is what Jack Markell, the
Democratic governor, did.

A constitution can be so inconvenient.

Whatever the turmoil in the Senate itself, Strine is
expected to glide into his next term. This is not what
happened when he was last nominated in 1998 by Tom
Carper, the Democratic governor now in the U.S. Senate.

At the time, Strine was the 34-year-old counsel to
Carper. Both then and today, Strine was known for his
braininess, demolishing wit and little compunction about
sandpapering others, no matter if they were state
senators with the power of advice and consent or
million-dollar lawyers in his courtroom.

Tom Sharp, a Democratic senator when Strine was first
considered for the bench, told him, "Maybe the problem
is some of us have gotten to know you very well."

Strine managed to be confirmed anyway with 12 votes,
one more than necessary, but it did not take a divining
rod to figure out where some of the votes came from.

On the same day Strine became a vice chancellor, the
Senate voted to make one senator's son a Superior Court
judge and another senator's nephew a Family Court
commissioner.

Strine went on to a reputation as an able judge on
the court that gives Delaware its international standing
in business law. Never mind the periodic wincing over
his bark and bite.